Daniela Lagunas, Law Clerk
Schwartz Semerdjian Cauley & Moot LLP
There may be a moment in an attorney’s career when he or she realizes they received documents that were not meant to be disclosed. During this brief period, an attorney must decide whether to listen to the devil on their shoulder and continue reading the inadvertently sent material or listen to the angel telling them to stop reading and immediately notify the sender. Prior to November 2018, no rule existed before that addressed an attorney’s duties to third persons when presented with inadvertent disclosure of privileged materials. The California Supreme Court has recently approved a new Rule of Professional Conduct on this issue, which became operative on November 1, 2018. This new rule underscores an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected by the attorney-client privilege.
California Rule 4.4 of Professional Conduct
California Rule of Professional Conduct, Rule 4.4, became effective on November 1, 2018, and states:
“Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer’s representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:
(a) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and
(b) promptly notify the sender.”
What type of conduct is this rule aimed at preventing? This rule’s purpose is to prevent attorneys from examining apparently privileged writing sent inadvertently by opposing parties. What steps should an attorney take once they have received inadvertent material? When an attorney receives a writing or any material that appears to be privileged and confidential, the attorney has an ethical duty not to examine the writing any more than is essential to determine if it is privileged. Then, the attorney shall immediately notify the sender that he or she received material that appears to be privileged, and resolve the issue either by agreement or by seeking the court’s intervention. See Rico v. Mitsubishi Motors Corporation, 42 Cal.4th 807 (2007).
In Rico, a case involving an automobile rollover with serious injuries and death, the plaintiffs’ counsel obtained a document that provided a summary, in dialogue form, of a defense conference between attorneys and defense experts in which the participants discussed the strengths and weaknesses of the defendants’ technical evidence. Rico, 42 Cal.4th at 820. However, plaintiffs’ counsel made no attempt to notify defense counsel but instead examined, disseminated, and used the notes to impeach the testimony of defense experts during their deposition. Id. at 814. Plaintiffs’ counsel acted in this manner, even though the notes were clearly the confidential work product of defense counsel. Id. The Supreme Court in Rico noted that “[a]n attorney’s obligation is not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” Id. at 818.
The Rico court adopted the standard applied in State Compensation Insurance Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999), the original California case defining an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected under the attorney-client privilege. Moreover, the Rico court expanded the rule to writings protected by the attorney work product doctrine and not just attorney-client privilege material.
In a more recent case, the McDermott court clarified that the attorney’s ethical obligation to return the inadvertently disclosed writing does not only arise when the writing is inadvertently disclosed during discovery in litigation, but such ethical obligation arises regardless of how the lawyer obtained the inadvertently disclosed writing. McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (2017). In McDermott, “[a] trial court properly found that a client who was one of the plaintiffs in the underlying malpractice actions against defendants did not waive the attorney-client privilege by forwarding a confidential e-mail he received from his personal attorney to his sister-in-law because the client inadvertently and unknowingly forwarded the e-mail from his smartphone, and therefore lacked the necessary intent to waive the privilege.” McDermott, 10 Cal.App.5th at 1083. The McDermott court also explained that, “the law firm representing defendants violated its obligations under State Comp. Ins. Fund v. WPS, Inc. when it used the e-mail in the underlying actions because the e-mail was presumptively privileged, and it was reasonably apparent that it was inadvertently disclosed.” Id.
Rule 4.4 essentially codifies the case law precedents set out above. Further, the new Rule of Professional Conduct was approved by the California Supreme Court; as such a clear message is being articulated as to the proper handling of inadvertently disclosed privileged materials, whether obtained in the course of discovery or through any other means. It is therefore incumbent upon attorneys to properly, and ethically, react to inadvertently disclosed privileged writings. Resist the temptation they pose and return the privileged writings to sender.
The commission concluded that adopting this new rule would help protect the public and the administration of justice, as well as inform attorneys of their ethical obligations. Consistent with such case law, comment  to the new rule provides the lawyer with the following options when a lawyer determines the rule applies to a transmitted writing: “the lawyer should return the writing to the sender, seek to reach agreement with the sender regarding the disposition of the writing, or seek guidance from a tribunal.” California, now along with fourteen other states has adopted Model Rule 4.4 verbatim. Ultimately, attorneys must think twice before falling into the temptation of taking a quick look at an inadvertent disclosure of privileged material if they want to avoid sanctions.